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Police v Elia [2023] WSDC 6 (16 June 2023)

IN THE DISTRICT COURT OF SAMOA
Police v Elia [2023] WSDC 6 (16 June 2023)

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L IC E

Informant

A N D:

ASOFA ELIA, male of Vailoa Palauli and Falelauniu Tai

Defendant

Counsel: Police Prosecution

Defendant unrepresented

Sentence: 16^th June 2023

SENTENCE

1. The accused appears for sentencing on one count of committing an indecent act on a young person under 16 years of age pursuant to section 59(3) of the Crimes Act 2013 (CA2013) which carries a maximum penalty of seven (7) years imprisonment:
   • (a) 59. Sexual conduct with young person under 16 – ....
   • (b) (3) A person who does an indecent act with or on a young person is liable to imprisonment for a term not exceeding 7 years......
2. The accused is also charged with insulting words pursuant to section 4(g) of the Police Offences Ordinance 1961 which carries a maximum penalty of three (3) months imprisonment or 2 penalty units (SAT$200):
   • (g) uses any threatening, abusive, insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned; ...
3. The accused denied the charges and a trial took place on 8 March 2023 where he was found guilty beyond a reasonable doubt on both charges. He now appears for sentencing.

The offending

4. The victim was 14 years old at the time of the offending on the 29 July 2022. She took the same bus heading home to Falelauniu that the accused was on. The only seat that was available was that next to the accused and she sat there. She noticed that the accused smelled of alcohol and had bloodshot eyes. It was not long after the bus left the Flee Market in Apia that the accused said to the victim “Koeikiki sau susu lou pi” and at the same time with his left hand was touching her leg. The accused started turning towards the victim and repeated the same words but this time reached for her private part with his left hand. The victim hit the accused hand with a book that she held, stood up and went and cried to another man who was sitting at the back of the bus.
5. Passengers who testified detained the accused and drove straight to Faleata Police Post and laid a complaint.

The accused

6. The accused at the time of the offending was about 43 years old, married with 2 children. He had moved from job to job and never settling with any. He resorted to the plantation to care and feed his family. He has one sister.
7. The accused attends the Congregational Christian Church of Samoa at Iva, Savaii. He is a committed member of the church in the Youth and Choir despite the fact that he lived in Apia for his work. The village mayor of Iva speaks highly of him as well as his wife and sister from supporting letters provided to Probation. They express shock and dismay with the accused offending but nevertheless seek for leniency.

The victim

8. The victim at the time of the offending was 14 years old and attended the Seventh Day Adventist School at Lalovaea. The Victim was clearly traumatized during her evidence unable to express herself freely and looked uncomfortable. The Victim Impact Report makes no mention of any psychological or emotional harm to the victim as a result of the offending except to say that she detests and is very unhappy with what’s happened to her because of the actions of the accused. I repeat was said in Police v Faletiute Raymond:
   • It is now generally accepted and empirical research suggest that violent sexual or indecent assault on young children are highly likely to bring psychological and emotional trauma that lasts for many years if not properly dealt with.
   • The absence of such an assessment on this victim is unforgiving notwithstanding that the facts suggest that the victim may have voluntarily participated (either in the whole or in part) in each of the offending. Such an assessment would go a long way in helping the victim deal with the offending as well as his own conduct or perception as to what is right and what is wrong. This assessment must be done by a professional clinical psychologist and must be made mandatory for all sexual offence cases involving young children.
9. In saying that, there has been reconciliation as the mother of the victim has confirmed that the accused came and apologized in the cultural manner and they have accepted the apology. She further requested Police to withdraw her complaint given their reconciliation and they have witnessed positive change in the accused

Aggravating features of the offending

10. In respect of the accused’s offending, the prosecution had not submitted a sentencing memorandum but have suggested that a custodial sentence was appropriate. Their starting point was three (3) months.

The aggravating features of the offending relate:

(i) to the age difference with the victim of 30 years - the accused was at the time in between jobs and providing for his family, responsible for his family’s care; he is of mature age to determine that his actions were wrong and yet proceeded without regard to the age and vulnerability of the victim notwithstanding the fact that he was intoxicated;
(ii) prevalence and the need for deterrence – sexual assaults and indecent acts on young children especial girls by older males are on the rise and the accused’s offending is no different but for the gravity of the act;

The mitigating features of the offending

11. There are no mitigating features of the offending.
12. I accept that the degree of offending is at the lower end of the scale but does not in any way excuse such actions and the effect on young children especially girls.

Aggravating features as an offender

13. The accused is a first offender and there are no aggravating features personal to him as an offender.
    

Mitigating factors in favour of the offender

14. I take into account the accused’s previous good character, the apology the accused did to the victim’s family, the consequences of publication, personal and familial humiliation, perception and feelings of embarrassment, disgrace and dishonor of his family’s good name.
15. The defendant has completed a rehabilitation program with his Pastor Rev Tonu Mauafu EFKS Iva, Savaii. The report shows that there was significant change from the defendant especially with his involvement with the Youth.
16. I accept that the accused is truly remorseful.

Previous sentencing Tariff

17. I refer to the discussion in Police v Petelo Samaila (10 August 2021) WSDC Unreported and Police v Faletiute Raymond (27 June 2022) WSDC Unreported which reviewed sentencing cases involving sexual offending pursuant to section 59 and 60 of the Crimes Act 2013 to provide consistency in sentencing as to such cases.

Discussion

18. The seriousness of the offending falls at the lower end of the scale. It was fortunate
19. for the defendant that his actions and the circumstances present were not conducive for an opportunity to exploit and overpower the victim. Many of these indecent assault cases occur in isolated and secluded locations where the victims are made more vulnerable to the exploitation of the offender. The victim in this case could only what was open to her and that was to move away from the defendant and tell what happened to someone else on the bus. There were other people on the bus that were watching the obvious silly conduct of the defendant.
20. The policy of this court is custodial sentence unless there were any exceptional circumstances to warrant a non-custodial sentence. I find the actions of the defendant to be of that described “taalo valea” or fooling around. This is the opposite of someone who was deliberate and intended to commit an unlawful act of indecent assault.
21. This is his first appearance in a criminal court, he has completed his rehabilitation program and I accept that he is truly remorseful of his actions. More importantly, he has apologized to the victim and her family. The family accepted his apology and advised him not to re-offend for the sake of his own children and family.

Conclusion

22. The defendant is convicted and ordered to serve 100 hours of community service. He is to remain under supervision for a period of 12 months and breach of the orders will result in revocation of the non-custodial sentence and the defendant will be brought back for sentence.
    

JUSTICE MATA’UTIA RAYMOND SCHUSTER